PATENT DEFECTS. 137 



an Unsoundness. And as Mr. Baron Bramwell's opinion, 

 that parol evidence is inadmissible to modify the written 

 Warranty to the extent of proving the existence of patent 

 defects at the time of the Warranty being given (i), appears 

 to be well founded, the written Warranty must be taken 

 to contain all the terms of the contract, and evidence as to 

 Patent Defects will only be receivable in cases where the 

 Warranty is not in writing. 



Where the "buyer suspects some Defect and wishes to Suspected 

 examine and try the Horse for it, but the seller objects Defects. 

 and says, *' I will warrant him," he is liable for the De- 

 fect. For where an action o)i the Case was brought when 

 a Horse warranted sound had turned out " Shoulder- 

 tied," it was contended that an action would not lie, 

 because the defect was visible. But Sir Henry Montague, 

 C. J., said, " This was the ground, that the plaintiff wished 

 to have ridden the Horse, but the defendant said, ' I will 

 warrant him sound.' " And Noy, J., said, " That is the 

 distinction, where the Defect is visible" (/«•). 



Where there is no opportunity of inspecting the com- Turchase 

 modity, the Maxim Caveat emptor does not apply ; and gpecUon.^"^" 

 the intention of both parties must be taken to be, that it 

 shall be saleable in the Market under the denomination 

 mentioned between them (/). This has been laid down 

 with regard to Horses some centuries ago, for we find in 

 the Year Book it is said by Thirning, J., " If I buy a 

 Horse of you in a different place from where the Horse is, 

 through the confidence I have in you, and you warrant 

 him sound in all his parts, when he is Blind, I shall have 

 a good action of Deceit against you" {ni). Therefore, at 

 the present day, if A. in London were to buy a Carriage 

 Horse of B. in Yorkshire warranted sound, and the Horse 

 on its arrival were found to have some Patent defect, such 

 as the want of an ear or tail, A. would not be bound to 

 take it, because being maimed, it could not be said to 

 answer the description of the Horse he ordered; and by 

 taking a Warranty he has done everything in his power to 

 protect himself (»). 



(/) Smiih V. O'Brien, 11 L. T., (;w) Year Book, 13 Hen. 4, p. 1. 



N. S. 346. (w) ^ee Gardiner \. (?;•«■?/, 4 Gamp. 



(k) Dorrington v. Edwards, 2 Rol. 145. See also Jones v. Just, L. R., 



188. 3 Q. B. 197; 37 L. J., Q. B. 89; 



{I) Gardiner v. Gray, 4 Camp. 18 L. T., N. S. 208. 

 145. 



